Well before the COVID-19 crisis, our civil legal system was inaccessible and unfair to millions of people, particularly those with low incomes. During this crisis, as inequities grow more severe, the civil legal system becomes more essential for addressing them. This is why this moment offers an especially strong case for reform.
The civil legal system helps people stay safe, healthy, and sheltered through laws that give rights and protections. Civil legal issues have life-changing implications for people who face unjust eviction, domestic violence, predatory lending, job discrimination, or child custody issues.
However, the civil legal system falls short of providing “equal justice for all” because a lawyer is often needed to navigate the forms and processes it demands. Many people cannot afford to hire one, so they go it alone—an estimated 30 million people appear without legal representation each year (PDF) in state and county courts.
But the system doesn’t come with a DIY manual and, when information is available, it is often in legal language—ad litem, ex parte, praecipe—that is difficult to understand. Imagine if, instead of pictures, Ikea used Latin in furniture assembly instructions.
Many courts also operate like video rental stores, requiring a person go to a brick-and-mortar building to file their paperwork and then return for an in-person hearing, often causing the person to miss work or find child care twice.
Health concerns surrounding the novel coronavirus have now severely restricted physical access to courthouses and have closed civil legal aid offices and clinics that assist people with low incomes, exacerbating existing inequities within the system.
But civil legal issues continue. People still need to get custody of their children, gain guardianship of a vulnerable loved one, or fight for rightfully earned benefits. Sadly, it has become increasingly important for frontline health workers and first responders to prepare power of attorney documents, in case tragedy strikes. Domestic violence is on the rise and, although the Coronavirus Aid, Relief, and Economic Security Act created a moratorium on evictions in federally financed housing, a tsunami of evictions is anticipated once the temporary stay is lifted.
The current crisis is accelerating efforts to modernize the civil legal system. Katherine Alteneder, who leads the Self-Represented Litigation Network, has long advocated for a system where “all people get the legal information they need, when they need it, and in a format they can use.” This means, in part, redesigning the system to be customer focused, rather than centered around attorneys and courthouses.
This reorientation is already underway in some communities, particularly rural areas where physical access to a courthouse or legal aid office is difficult for most residents. Now that such access is difficult for many more, system reform can gain momentum, and we can turn to existing efforts as models.
Stacey Marz, administrative director of the Alaska Court System, and other adaptive leaders in these areas have embraced data and technology in their models. Given the geography, telephonic hearings have long been a regular part of how Alaska courts operate, and video-remote interpreting is available when necessary. This different way of working has caused many other “business as usual” practices to be reconsidered; for example, must people take the extra time and expense to have documents notarized? No—Alaska allows information to be simply certified when no notary is available.
Rather than bringing paperwork to a courthouse, several communities and states allow electronic submission of documents (e-filing) and have do-it-yourself forms (think Turbo Tax) in plain language to file for divorce or request custody of children.
A few courts have been piloting online dispute resolution platforms, used extensively by online retailers to resolve 60 million small claim disputes a year, that do not involve an attorney or require going to a courtroom.
Importantly, as justice leaders introduce and scale these new ways of working, they are asking critical questions about privacy and equity, including about language and internet access and the financial costs of cellphone and data charges for people now using mobile platforms to solve their legal issues.
As Marz recently explained during a webinar hosted by the National Center for State Courts, necessity may have been the mother of invention in Alaska, but for others, it may be this crisis. The measures being adopted now to increase access to justice should not be viewed as temporary responses. Rather, this is a tremendous opportunity to replicate practices that have been developed and tested by forward-thinking justice leaders and encourage further reforms to make our civil legal system fairer and more accessible for all.